Personal Cultivation Of Cannabis: Constitutional Concerns And The Cole Memo

By Bailey Hirschburg

The following is one section of a report presented by Washington NORML to the state’s Liquor and Cannabis Board (LCB) regarding their study of regulatory options for home growing. WA NORML’s full report, “Personal Cultivation of Cannabis: A look at policy alternatives” can be found here:

The study was mandated by recently by law (SB5131), and directs a “study of regulatory options for the legalization of marijuana plant possession and cultivation” by the LCB, directing the use of guidelines from a 2013 Department of Justice memorandum outlining federal expectations of state-legal marijuana policies as a guide. Written by then-deputy Attorney General James Cole, this document is widely referred to as the “Cole Memo.”

The LCB is taking public comment on their regulatory options, found here . Email your comments to rules@lcb.wa.govby October 11th to see they’re included in the study’s public response.

EXCERPT:

When Washington legalized adult possession in 2012 through I-502, only the state of Alaska had any decriminalization of personal cultivation. Today, seven states have as well as the District of Columbia have legalized not just possession and use, but some form of cultivation. All are been treated as complying with the Cole Memo, meaning a compliant policy is not only feasible, but common.

Many of the Cole Memo’s priorities are sensible and existed in the intent and language of Washington’s legalization initiative before the memo was issued, including prohibiting access to minors, stringently regulating impaired driving, and studying legalization’s social impacts. However, basing state law on this document over other arguments is untenable. It clearly reads: “This memorandum is not intended, does not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter civil or criminal.” The Washington State Senate Committee Services’ published guide to legislators fails to directly address this statement in it’s summary of the Cole Memo. Combined with the abnormal size of SB5131, this means some lawmakers may not have been clear on the risks inherent in basing a study about rights on a non-binding opinion of commercial markets.

Furthermore, the memo offers a relevant example of where state enforcement typically supersedes federal action. “the Department of Justice has not historically devoted resources to prosecuting individuals whose conduct is limited to possession of small amounts of marijuana for personal use on private property. Instead, the Department has left such lower-level or localized activity to state and local authorities and has stepped in to enforce the CSA only when the use, possession, cultivation, or distribution of marijuana has threatened to cause one of the harms identified above.”

The Cole Memo aside, a simple argument for allowing home growing is found in Washington’s Constitution “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” Washington Supreme Court Associate Chief Justice Charles W. Johnson noted “The broad language in article I, section 7 will always require that official interferences with the private affairs of residents are governed by precise and predetermined legal principles. But by allowing for disturbances made with the authority of law, the framers also allowed future generations to play a role in shaping their privacy rights, provided the relevant constitutional limitations are respected.”

This right to privacy is woven into our civic fabric, and fairly extends to a plant adults can and do possess in homes across the state. The scent or appearance of marijuana is no longer a crime, and the state lacks a compelling interest in policing small gardens. The cultivation and use of cannabis doesn’t damage or block another’s rights. The state can only continue this practice with a clear explanation of why constitutional law allows this authority.

The Cole Memo guidelines are largely sensible, and based on the priorities of I-502. Some sections discuss specific issues in depth, but most would not be impacted by legal home growing. As of September 2017, those guidelines are:

1. Preventing distribution to minors. (Included in I-502, see “Impact on Youth”)

2. Preventing the revenue from going to criminal enterprises, gangs and cartels. (Included in I-502, see “Intent of I-502”)

3. Preventing the diversion of marijuana from states where it is legal to other states. (Not addressed in I-502. (Home growing poses minimal threat due to the costs in transporting and risks for arrest in distributing. Though law enforcement typically calculates seized marijuana value on final street price per individual sale, growers not distributing themselves often sell in less-profitable wholesale price. See “Academic Findings on Personal Cultivation”)

4. Preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity. (Not addressed in I-502. Because the sight and smell of marijuana is no longer a crime, nor are cooperative or medical marijuana grows, this will be an issue of concern regardless of legalization of home grows. However, clear guidelines for police and the public assists in focusing investigatory resources on active threats to the guidelines. See “Marijuana Legalization and Nosy Neighbor States”)

5. Preventing violence and the use of firearms in the cultivation and distribution of marijuana. (Not addressed in I-502. If all adults can grow cannabis in private it will reduce the likelihood of violent crime in/around marijuana licensees or currently illegal personal cultivation sites.)

6. Preventing drugged driving and other adverse public health consequences associated with marijuana use. (Included in I-502 in the form of revenue directed to public education and research. Home grows offer a source of safe cannabis that doesn’t require driving after purchase of a seed/plant clone. Rates of impaired driving have never been examined based on a consumer’s sourcing of cannabis.)

7. Preventing the growing of marijuana on public lands and the environmental dangers posed by marijuana production on public lands. (Included in I-502, Washington state continues to receive marijuana eradication funding from the DEA. By licensing production and processing Washington continues to focus on larger-scale, criminally organized public grows. Cultivating fewer than 20 plants on public lands is not common, but risk of arrest means those growing for themselves are motivated to do so away from their own property. See “Impact on Law Enforcement” & “Impact on Other Issues”)

8. Preventing marijuana possession or use on federal property. (Included in I-502, as the initiative highlighted the difference between federal and state laws and created appropriate areas of possession and use it made the risk of possession or use on federal property less appealing. Home growing continues that trend.)

Finally, even with the best of intentions, legal challenges to a law based on a memorandum is potentially fatal to an entire law. It’s unclear if the state could even show the memo as evidential in court.

The Wink In Weed: Leap Day Cannabis Industry Report

By David Rheins

Happy Leap Day.  The last two weeks of February have been such a whirlwind of hyperactivity for myself and Team MJBA that I need the extra day to tell you all about it.

On February 17th, MJBA Seattle presented, “Managing Your 502 Business,” a two-hour business boot camp designed to provide Washington’s licensed cannabis companies with “must have” information and best practices.  Sponsored by NWMJ Law, the professional education seminar featured presentations from top industry authorities, including Act Resources, Dani Espinda; Mosaic Insurance’s Norm Ives; business coach Debbie Whitlock and NWMJ Law’s Anne Van Leynseele.

The entire event was recorded, and can be viewed on MJChannelOne:

[youtube http://www.youtube.com/watch?v=68iRB9vebNQ&w=420&h=315]

The very next day, Team MJBA packed up our tent and made our way down to Seattle’s Pier 91 for CannaCon.  The three-day event, February 18th, 19th and 20th, has become a keystone event for MJBA/MJBA Women’s Alliance, one where we participate as exhibitor, and media sponsor.  This year, both Morgan and I were featured speakers,  I had the honor to moderate 10 panels, and conduct a host of 1:1 taped interviews with CannaCon speakers, exhibitors and other industry leaders (special thank you to Darin Bruce and his AV team).

BDS CEO Roy Bingham delivered a keynote at CannaCon

BDS CEO Roy Bingham delivered a keynote at CannaCon

This was MJBA’s fourth CannaCon and I could not help but be struck by both how large and professional the industry and “the business of cannabis” show has become.   Everyone who is anyone in cannabis was present: Washington’s top cannabis regulators came out to participate as panelists, including WSLCB Director Rick Garza, WSDH’s Kristi Weeks, and the WSDA’s Steve Fuller.  This year’s panelists include a very diverse representation from the broad tent of our cannabis community, including long-time activists like Cat Jeter, Kristin Flor, Don E Wirtshafter and Vivian McPeak; legendary growers like Ed Rosenthal, Kyle Kushman and Farmer Tom Lauerman; media personalities like Katherine Grimm and Cheryl Shuman, and a host of power women in cannabis, including Eden Lab’s AC Braddock, Seattle Hempfest’s Sharon Whitson, Washington’s Finest Cannabis founder Crystal Oliver, Cannabis Basic’s Ah Warner, Kush Creams’ Megan Schwarting, and Washington Bud Company’s Shawn DeNae.

[youtube http://www.youtube.com/watch?v=h_ewkwNh5kc&w=420&h=315]

On Thursday, February 25th, MJBA Spokane held its February Meetup at a new venue, The Black Diamond.  Jon Legualt, Belladonna Growhouse, was our host and a featured presenter. He shared the stage with Washington’s Finest Crystal Oliver, who updated the group on what’s happening with Spokane’s Clean Air regulations and how they are impacting Eastern Washington producer/processors, and Kevin Oliver, executive director of Washington NORML, who gave the group a report from the legislative fronts in Olympia and Washington D.C.  Front Runner ceo Brian Yauger unveiled his latest offering, MJTicker.com, a real-time business intelligence portal designed especially for participants in the legal cannabis industry.

[youtube http://www.youtube.com/watch?v=hy5YgjDTntE&w=420&h=315]

And finally, to close out the month, MJBA New York is hosting a Leap Year Happy Hour at Manhattan’s swanky Gansevoort Hotel. Hosted by MJBA NY’s Stu Zakim and Paul Abramson, the evening of information, community and opportunity takes place at the ultra-hip hotel, located at 420 Park Avenue!

Coming up next: MJBA Portland hosts a special Meetup: “Game On: The Business of Cannabis and Sports,” Wednesday, March 2nd at the On Deck Sports bar.  Sponsored by CannaGuard Security, the event will feature opening remarks by NBA All-Star turned cannabis entrepreneur Cliff Robinson, who’ll debut his new “Uncle Spliffy” brand.  Then an industry panel will discuss the many business opportunites that exist at the intersection of sports and cannabis.  VIP Panelists include Uncle Spliffy’s Linda Miller, Siverback Advisory Groups’ Marc Belsher, and Fore-Twenty Golf’s Matt Enos.

Reserve your spot for this historic discussion here:

 

Will Work For Weed

WASHINGTON: Start practicing your elevator pitch — the 60-second speech to land you a dream job in the cannabis industry.

The Marijuana Business Association is hosting a job fair and networking event featuring up to 50 cannabis employers and keynote speakers from across the state. Spokane is host to the third MJBA job fair to date. MJBA co-founder David Rheins says upward of 100 jobs were filled at last year’s job fair in Bellevue.

“You can’t find a cannabis job on Craiglist or Monster.com,” he says. “This is an unprecedented opportunity to meet this many employers who are hiring in one room.”

So bring your résumé.

Employers including BioTrackTHC, Triple T Farms, Blue Roots Cannabis and the Walla Walla Cannabis Company will be on hand, alongside speakers like Eden Labs CEO AC Braddock, who will address cannabis business models and the gender pay gap. Both skilled and unskilled workers in industries as varied as web design and agriculture are encouraged to attend.

“This green rush is unlike other economic booms,” Rheins says. “There are more opportunities in this new market, and employers are looking for workers across the spectrum — from insurance salesmen, to growers, to bankers, to security guards.”

MJBA is a Seattle-based trade organization founded in 2012. The organization is 420 businesses strong, with chapters across Washington, Colorado and Oregon. MJBA provides networking and business platforms for the recreational marijuana industry, with sponsored banking seminars, meetups and job fairs.

“We have a very mature cannabist culture, but an underserviced industry that doesn’t have the tools to function,” Rheins says. “When voters approved the commercialization of cannabis, it didn’t provide a framework for real estate, or insurance, or the very basic business principals that this emerging industry needs to flourish under such scrutiny.”

The association essentially teaches “Business 101” to the hundreds of mom-and-pop stores that have opened since I-502 passed. The job fairs aim to not only highlight, but normalize professional trades in the marijuana industry, and bring together the once-underground community.

“Our disadvantage — our lack of infrastructure — is also our biggest advantage,” Rheins says. “We can build a more intentional market.” ♦

Spokane Cannabis Job Fair • Sat, June 20, from 10 am-4:20 pm • Free • 21+ • Spokane Convention Center • 334 W. Spokane Falls Blvd. • mjba.net • (425) 892-9221